As a result of the Energy Transition Act ("ETA"), we have been forced into an accelerated time frame to "investigate" PNM's abandonment of the San Juan Generating Station. The PNM plant and mine, which sits on an enormous 250-acre site, will have been digging up the Earth with enormous excavation machines, burning coal, creating 59,000,000 million tons of coal ash, which is placed in 60 ft. high layers, in unlined pits, with "overburden" on top (rock and soil "waste" that was created by the search for coal in the first place) and then "capped" with inches, in some cases, feet of top soil.
We know this because we were allowed to enter and inspect PNM's San Juan site as a result of a Motion to Compel which New Energy Economy won last month.
After what will be 45 years of extreme extraction, exploitation, and massive pollution, in 2022 PNM's San Juan Generating Station will finally be closed. The enormity of industrialization and the hubris of man is truly awesome. What PNM has really done is rape Mother Earth. The violence is astonishing and continues.
The ETA has hyper-constrained the amount of time that we, the only group that has tried to investigate and expose the magnitude of harm, has been allowed. When we were fighting the ETA in the legislature one of the constitutional violations we raised was N.M. Const. art. IV, §34, which provides:
“No act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case.”
We were focused on two aspects of this constitutional protection:
"affect the right or remedy of ratepayers" - before the ETA, the PRC had the responsibility to protect ratepayers and fairly balance cost burdens between ratepayers and shareholder investors versus after the ETA, PNM shareholders get all the money from ratepayers, by the amount set by the company, no questions asked.
was there a "pending case” at the PRC before the ETA became law? Yes there was. In Phase I of PNM's San Juan abandonment (the closure of units 2 & 3) PNM was required to hold a hearing about its future plans regarding San Juan operation, but it never did! So in one of the very first acts of the new PRC, in January 2019, initiated a case to determine to investigate just that.
The case was opened on January 10, 2019, way before the ETA was even filed, let alone signed and six months before it became law.
However, we have realized through this abandonment case that one of the more insidious and enormously problematic violations of the ETA is this clause from the same constitutional section: "change the rules of evidence or procedure." This very important clause was meant to avoid the situation we now find ourselves in: the hyper-constrained ability for the public to discover and determine the extent of pollution so we can hold PNM accountable.
Pre-ETA we had 2 years or more to ask questions of PNM, review documents, investigate further, dig deeper in order to pose more questions (in the first Phase of the San Juan case - that did not include abandonment - NEE asked about two dozen sets of discovery questions and requests for documents; this time around we have only asked eight).
Though we've been buried in thousands, literally, many thousands of pages of documents, PNM has refused to produce critical information like groundwater monitoring data! They play hide the ball, make us beg for the most important material and finally then file motions to get what we should have gotten in the first place. The entire post-ETA discovery process and production of testimony has been limited to 4 months.
The ETA has changed the rules of evidence and procedure to prevent the public from understanding the extent of pollution and holding PNM accountable. See the expert testimony of Mark Hutson here, which concludes that:
“...My testimony identifies concerns for current and future groundwater quality associated with the SJGS and SJM. Investigating and remediating current contaminant releases on the SJGS is readily achievable if the will is there to do so. Evaluating and controlling the predictable future impacts from coal ash disposed in the SJM will require those involved to identify ways to technically and financially mitigate impacts to future generations. I fear that avoiding future environmental impacts from actions taken today will be a much more challenging endeavor."
We took two samples from water that was just spewing into the Earth and literally got the results on November 6th, despite paying a higher fee for "expedited" lab results, see below what was discovered: (Samples were taken in the exact same spot as photographed above - but when we saw it on a cold day on 10/28/2019 the pipe had been suspiciously removed and there was "fresh" earth moving machine tracks visible for all to see)
According to the lab's analysis contained in the testimony of New Energy Economy's expert:
"The USEPA Maximum Contaminant Level (MCL) and Secondary MCL for several of the parameters are included on the table for comparison purposes. The water can be characterized as a high TDS water with elevated concentrations of sulfate, sodium, chloride, boron, and lithium. This suite of parameters is often found at elevated concentrations on and around coal ash impacted facilities. I hope that since groundwater recovery in the Shumway Arroyo has recently been activated, that this water is being collected and returned to the SJGS evaporation ponds. However, I have not been provided with any information about the operation of the recovery system to confirm that this is the case. Additional investigation and characterization of unimpacted background concentrations would be required to identify specific sources of these parameters."
The ETA is an affront to the public interest and prevents corporate accountability.
We hope that you will join us in outrage and confront PNM and the ETA proponents for the carelessness in supporting this manifestly unjust law. Speak out against the application of the ETA to the abandonment case on December 9th at the PRC, 9:30am.
For the Just-Transition, For Renewable Energy, For the People. CLICK to hear New Energy Economy, Mariel Nanasi addressing issues of the Energy Transition Act before Water & Natural Resources Committee today in Santa Fe.
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